Category - Custody

The typical divorce often involves parties sparring with each other as adversaries. A collaborative divorce utilizes a different approach. Family law attorneys guide their clients to work together to find equitable solutions to issues such as custody, visitation, and property division. Instead of entering the divorce process contentiously, spouses agree to work together to troubleshoot and solve problems through negotiation and mediation.

In a collaborative divorce, proceedings are less expensive and can be completed more quickly than litigation. Both parties can feel confident about having their concerns addressed. Additionally, a compromise occurs during negotiation, which allows the parties to reach a settlement without a judge interceding. In this format, all parties, including children, typically experience less stress and anxiety.

Both parties must be willing to work with each other to achieve a collaborative divorce. With this plan, a family law attorney can help spouses end their marriage and move forward without the acrimony usually associated with divorce.

“I want to sign my rights away.” “He’s gonna be 18 in June. I can stop paying child support then.”

I have often heard these and other similar comments. For the most part, however, such thoughts are wishful thinking and not reflective of current New Jersey law. But what happens if these mistaken beliefs come before the court in the form of a proposed consent order which a judge is asked to sign, or in a marital settlement agreement presented at an uncontested final divorce hearing?

First, under such circumstances, an experienced attorney will advise his/her clients that their child emancipation expectations are likely against New Jersey public policy. So, questionable child emancipation language rarely appears in attorney-drawn orders or agreements. Second, a judge will likely refuse to sign a consent order containing premature child emancipation language despite consensus between the parents. And third, should dubious emancipation language “slip through the cracks,” a subsequent judge or an appellate court will probably not enforce the questionable provisions finding them to be at odds with New Jersey public policy. It should be noted that with marital settlement agreements judges rarely, if ever, read them at an uncontested divorce hearing. Judges are simply interested in assuring that the parties have voluntarily signed the agreement without coercion; that they understand it and recognize that they are giving up their right to trial; and that they wish to settle the case according to the terms of the agreement.

Child emancipation is almost always interwoven with termination of child support payments. The guiding principle is that child support belongs to the children. The parent receiving the support holds it in constructive trust for the children. The money is to be spent on and for the children. To be sure, in a number of cases the child support monies are spent by the receiving parent on personal items that do not benefit the children. Unfortunately, the courts do not have the resources to monitor parental use of these funds. In fairness, court personnel and related state and county agencies cannot be expected to micromanage the spending habits of divorced and separated parents.

“Emancipation” is a legal concept denoting the end of the fundamental, dependent relationship between parent and child. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). It is not automatic and “... need not occur at any particular age …” Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Upon emancipation, legal and physical/residential custody rights and responsibilities are no longer vested in the parents and child support ceases.

N.J.S.A. 9:17B-3 holds that once a child reaches the age of majority, now eighteen, a parent has established “prima facie, but not conclusive, proof of emancipation.” The burden of proof then shifts to the party seeking to continue the child support obligation. Next, the court embarks on a critical evaluation of the existing circumstances—the child’s needs, interests, independent resources, family expectations, and the parties’ financial abilities, among other things. Newburgh v. Arrigo, supra, at 545.

If the child joins the armed forces, gets married, obtains employment and his/her own residence at a separate location, these are all factors indicative of emancipation.

Another consideration is the responsibility of the parents in New Jersey to provide for payment of the children’s undergraduate college education after all loans, scholarships and grants upon immediate, fulltime (twelve credit hours or more per semester) enrollment in college. This duty was originally set forth in the Newburgh case referred to above. While Newburgh does not provide detailed guidance for trial judges in how to implement its philosophy, a common convention among New Jersey Family Division judges is that students are given five years to obtain a Bachelor’s Degree. Thus, the support obligation may continue until the child is twenty-three.

This is just a brief synopsis of a few of the many issues that may arise when parents are confronted with the child emancipation question.

I see it time after time. To save divorce attorney’s fees, people go down several different paths: They pay a nominal sum of money to a commercial divorce center in exchange for a packet of forms; go to the Clerk of the Chancery Division-Family Part for divorce forms; cobble together self-drawn marital settlement agreements from internet sites; or acquire generic forms from family and friends. Actually, it is surprising how much the layperson gets right from these various sources. The problem that arises, however, is the critical nature of those several things which are omitted or poorly worded. Child custody and child support are fertile areas for mistakes in agreements drafted by laypersons. The distinctions between “legal” custody and “physical/residential” custody are often not understood and, therefore, not correctly phrased in the agreements. Parenting time is not sufficiently specific. For example, pickup and dropoff arrangements are not clarified, and extended summer parenting time and holiday visitation are either left out or imprecisely phrased.

Lack of understanding of the New Jersey Child Support Guidelines by divorce litigants often leaves them uncertain as to how much money per week should be paid for child support resulting in too little or too much being paid. Also, failure to have child support paid via wage execution through the County Probation Department Enforcement Division is not included in the agreement. The child support recipient often does not know the process to implement the wage execution.

As far as real estate division is concerned, the quitclaim deed/mortgage refinance issue is usually mishandled.

Regarding spousal support, it is not uncommon for the amount of the weekly alimony and the length of the alimony term to be inconsistent with the statutory guidelines and conventions employed by the courts and divorce attorneys.

As well, division of retirement assets is often never accomplished since laypersons generally do not understand the contributory retirement plan “rollover” process and the necessity for Qualified Domestic Relations Orders (QDROS) for defined benefit plans (pensions).

To correct the above mistakes, indeed, if that can be accomplished at all, may wind up costing more than if an attorney had been retained to handle the divorce in the first place.

The procedural remedy in New Jersey is a post-judgment motion to attempt to correct the deficiencies in the marital settlement agreement. Sometimes this is successful and sometimes not. There are two competing legal doctrines: one, basic contract law; and two, recognition that the Chancery Division-Family Part is a court of equity which seeks to provide justice to all parties. On the one hand, in interpreting a contractual provision, the goal is to ascertain the intention of the parties to the contract based on the language used, taken as an entirety. Some judges take the position that the court will not excuse performance of the agreement as written because the court is not obligated to make a better contract for the parties than they saw fit to make for themselves. The court may also rule that subsequent events which should have been foreseen by the parties when they entered into the martial settlement agreement will not make the contract unenforceable as written. See Schwartzman v. Schwartzman, 248 N.J. Super. 273, 278 (App. Div. 1991), and Schiff v. Schiff, 116 N.J. Super. 546, 561 (App. Div. 1971), certif.denied 60 N.J. 139 (1972).

On the other hand, there is a legal doctrine in New Jersey by which the law grants particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements. The rationale of the New Jersey courts is that although marital agreements are contractual in nature, contract principles do not have as great a place in the law of domestic relations as in other areas of the law. Lepis v. Lepis, 83 N.J. 139, 148 (1980); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992); Konzelman v. Konzelman, 158 N.J. 185, 194 (1999).

Chancery Division-Family Part judges, when confronted with a post-judgment motion to amend, interpret or clarify the marital settlement agreement, have a substantial degree of discretion. Only in the most extreme circumstances, such as if there is a plain misreading of the law by the Chancery Division judge, will an appellate court reverse the trial judge.

So, if you choose to represent yourself in a divorce, beware of the legal and procedural obstacles that lay ahead.

In 1991, the New Jersey Legislature enacted the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq. In implementing this law, the legislature was aware of the significant number of persons who have been beaten, tortured and in some cases killed by spouses, cohabitants or “significant others.” Perpetrators of domestic violence pervade all educational, social and economic backgrounds and ethnic groups. The lawmakers felt that it was necessary to pass a new statute to protect victims by providing access to emergent and long-term civil and criminal remedies and sanctions. Under the Act, one or more of the following events inflicted upon a protected person may constitute domestic violence: homicide; assault; terroristic threats; kidnapping; criminal restraint; false imprisonment; sexual assault; criminal sexual contact; lewdness; criminal mischief; burglary; criminal trespass; harassment; stalking; criminal coercion; robbery; contempt of a domestic violence order; and any other crime involving risk of death or serious bodily injury to a protected person.

In a nutshell, the procedure first involves the issuance of a temporary restraining order (TRO), generally authorized by a Municipal Court Judge based upon the local jurist’s acceptance of a factual description given by the victim (often by telephone) that embraces one or more of the 18 events described above. The TRO is served by the municipal police upon the accused and he or she is removed from the parties’ mutual residence pending disposition of the case by way of a Superior Court final restraining order (FRO) hearing, usually scheduled 10 to 14 days later. If an FRO is ultimately issued, interaction between the victim and the accused is disallowed by the court. Frequently, this includes restrictions against telephone, email and text-message communications as well as barring face-to-face communications. Occasionally, however, (and particularly if the parties have minor children) the FRO may contain a provision that contact will be permitted if there is an emergent situation involving one of the children. This emergent contact generally sanctions only one-time text-message, email or telephone contact for that very limited purpose.

After the issuance of the FRO, a common problem that arises is the practical difficulties in raising minor children in light of a court order barring any and all forms of association between the parents. Countless scenarios unfold: Predicaments surrounding parenting-time pickups and dropoffs; transporting the children to and from extracurricular activities; medical appointments; school parent-teacher meetings; communicating with the other parent about proposed vacations with the children or extended summer parenting-time arrangements. With the FRO, communications between the parents about the children are supposed to take place through third parties, most frequently the grandparents or occasionally siblings. Often this is impractical. The grandparents or siblings may not be available all the time for a host of legitimate reasons. It then becomes commonplace for the parent who is the protected party under the FRO to contact the other parent. Next, the parent against whom the FRO has been secured in response telephones, emails or text-messages the protected parent. Even if well-intentioned, this is a violation of the FRO. Even such an innocent act may lead to a criminal contempt hearing for violation of the FRO. Regretfully, there is also a less savory scenario in which the protected person purposely seeks out the restrained person to bait him/her into a form of contact violating the FRO. The salutary purpose of the Domestic Violence Act is thus being used as a sword instead of as a protective mechanism as intended by the legislature and the court.

Regardless of the motivation, failure to strictly adhere to the requirements of the FRO is a violation—a fourth-degree crime—under the New Jersey Code of Criminal Justice. Therefore, if under an FRO, a parent should always respond through a third party to avoid this problem.

After the issuance of the FRO it is not unusual for the parties to reconcile. Nonetheless, New Jersey case law holds that reconciliation between parties to a domestic violence restraining order, without application to the court to dismiss the order, does not void the order or otherwise serve as a defense to a charge of contempt for violating the order. The policy position of the New Jersey courts on this point is that an order of the court must be obeyed unless and until the court acts to change or rescind the order. In a contempt proceeding for violation of an FRO, a primary consideration is the vindication of the authority of the court. One of the rationales for the New Jersey court adopting this position notwithstanding reconciliation between the parties is that by its very definition domestic violence is a recurring pattern of behavior—repetitive conduct which is controlling in nature. Longstanding victims of domestic violence have been conditioned, sometimes unconsciously, to heavy-handed, domineering behavior often accompanied by verbal intimidation and physical abuse.

So, in the event that there is reconciliation between the parties an application should be made to the court by the party in whose favor the FRO was issued to vacate the order. In this way, true “reconciliation” may take place, unencumbered by the potential for a criminal contempt court hearing.

The Family Division of the Superior Court of New Jersey hears child custody issues under “FD” docket numbers. Among the principal issues determined in FD litigation are legal custody, physical custody, child support, parenting time and emancipation when the child is no longer within the sphere of influence of the parents, at least to the degree that existed during the preadolescent and adolescent years. Each of these topics within the child custody field embraces a number of sub-issues. These sub-issues run the gamut from particularly critical decisions, such as who will be deemed the parent of primary residence (PPR) and who will be deemed the parent of alternate residence (PAR), to resolution of less consequential disputes involving parenting-time pickups and dropoffs.

In an effort to assist parents in settling their child custody disputes most counties require child custody mediation before a court-trained mediator who will hopefully solve many of the parents’ issues and assuage their concerns. Oftentimes, the parties already have a loose framework for an agreement and the assistance of court mediation may provide the impetus to bridge any remaining gaps. In the absence of custody mediation fostering an agreement, some counties then employ a more formal process called Custody Neutral Assessment (CNA). This is a more intensive custody dispute resolution mechanism. A Family Division judge, for example, when confronted with a custody dispute in the appropriate circumstance may refer the parties to CNA and defer from making a final decision until the parties have completed the CNA process.

Hearing officers are utilized to set child support obligations in accordance with the New Jersey Child Support Guidelines. This is a procedure in which the parents are ordered to appear with their most recent income tax returns and three most recent paystubs. The hearing officer will then and there calculate and enter a child support order. The New Jersey Child Support Guidelines are premised upon the combined net weekly income of the two parents as modified by certain variables such as the number of overnights with each parent, child care expenses, and payment of medical insurance premiums for the child.

Child custody mediation, CNA and the utilization of hearing officers hopefully winnow the issues that have to be decided by a New Jersey Family Division Superior Court judge.

The vast majority of child custody cases are in whole or part settled by the processes described above. I have found that the child custody cases not destined for settlement most commonly feature one or more of the following factors: An implacable hatred between the parents (married or not) due to the nature and circumstances of their breakup and/or the unharmonious relationship that existed before the breakup; and one of the parents having a pronounced psychological quirk, very frequently a narcissistic, domineering personality. Frequently, these factors override the parents’ ability to reach a compromise concerning the child or anything else. Perhaps even subconsciously the best interest of the child (the cardinal standard by which New Jersey Superior Court judges adjudicate child custody cases) is relegated to the background while the parental interpersonal conflicts rush to the forefront.

Certainly, however, there are many good parents who have deep, heartfelt convictions that their child’s upbringing would be better served if he or she were the “primary” parent. Such feelings may be based upon the social history of the family in which one parent was the primary breadwinner, having spent many hours at his or her job which might have otherwise been spent with the child. Conversely, one parent may have been home all day with the child for many months, if not years, and feels the other parent is not nearly as familiar with the daily routine and details of child care so as to be able to successfully take over the custodial duties. This is not necessarily a criticism of the less involved parent; rather, it is a reflection of twenty-first century America in which many upwardly mobile young to middle-age parents spend an extraordinary number of hours in the course of their employment — sometimes to the detriment of their child. Of course, rightly or wrongly, substance abuse allegations and other indicia of parental unfitness are sometimes levied by one parent against the other.

So, what may one expect at the custody trial? New Jersey Superior Court judges in the Family Division are beset with a multitude of duties which do not even involve “bench” time — review and preparation of motion decisions; writing findings of fact and conclusions of law for completed trials; and conducting settlement and scheduling conferences with attorneys in pending cases. The trial scheduling of Family Division cases differs from those in the Civil and Criminal Divisions in that Family Division trials are non-continuous while civil and criminal jury trials are continuous only. A child custody case may span multiple full or half trial days over a period of months whereas the criminal or civil jury trial proceeds from start to finish over consecutive days. Unlike a jury verdict, a non-jury or “bench” trial in the Family Division usually requires that the attorneys submit post-trial proposed findings of fact and conclusions of law and the judge will then render a written opinion within several weeks.

Since Family Division trial days are non-consecutive and may feature gaps of weeks between trial testimony, memories fade and detailed factual recollection of exactly what was said becomes imprecise. I prefer to rely not only upon trial notes, but also upon an audio tape of the trial testimony which can be ordered for a nominal sum from the court administration.

During the trial, the parents and any fact and expert witnesses testify on direct, cross, redirect and recross-examination. Generally, exhibits are premarked for identification and introduced into evidence at the trial. Most Family Division judges require that trial books be submitted to the court and exchanged between the attorneys several days prior to the trial. There is no trial by “surprise” in New Jersey courts. Prior to trial, each party is conversant with the proofs of the other.

Parties may engage expert witnesses. In child custody cases, these are usually psychiatrists, psychologists, therapists or counselors. The experts must prepare and submit narrative expert witness reports which are exchanged between the attorneys prior to trial. The expert witnesses testify at trial either “live” or by videotape. In South Jersey, only a small percentage of child custody cases feature expert witnesses, principally due to the cost involved. It is not uncommon for a child custody expert to require a retainer of $5,000 or more. Thereafter, the custody expert may also require a trial testimony retainer for the court appearance. Along with attorney’s fees, these financial sums are often beyond the reach of many middle-class litigants.

Sometimes, the judge will interview the child; but judges are reticent to do so if either parent, through his/her attorney, expresses an objection. The age of the child is also an important factor in determining if the child will be interviewed. Above all else, Family Division judges are acutely sensitive to the potential of psychological trauma being visited upon the child by the litigation process. The interview is before the judge only in his/her chambers. Most judges permit the attorneys to submit proposed questions.

I have yet to appear before a New Jersey Family Division judge in a child custody case who did not exert his/her best effort to be impartial and attempt to craft a decision in the best interest of the child. Nonetheless, judges are human, and neither the attorneys nor the litigants know whether a judge’s life experiences or philosophical convictions may nudge him/her in a certain direction, perhaps even unknowingly.

Appeals in child custody cases are difficult in the sense that Family Division judges are afforded wide discretion, and reversal of their decisions necessitate an abuse of discretion, significant procedural or evidentiary error, or a plain misreading of the law.

Usually, attorneys bill by the hour in family law matters. Written retainer agreements are required. The billing rate for South Jersey family law attorneys varies substantially, but frequently ranges from $250.00 to $325.00 per hour. Disbursements, including postage, photocopying and court filing fees, are added to the hourly billing sums.

The points discussed above are simply some of the considerations parents should take into account when assessing child custody issues and how they may be resolved within the framework of the New Jersey court system.

Net income: This іs thе combined net income fоr bоth parents determined bу paystubs, раst tax returns аnd оthеr financial statements. Νеw Jersey law allows fоr several other considerations, including child care expenses, a credit for the increased cost of having one or more children on the medical insurance policy of one of the parents and a credit if one or both of the parents is paying support for another dependent.

Eligible children: All children оf thе union аrе eligible fоr child support untіl thеу аrе emancipated. The term “emancipated” means when the children are no longer under the sphere of influence of the parents. This may occur, for example, when a child is married, joins the armed forces or has graduated from high school without immediately going on to college as a full-time student.

Parenting time: The Νеw Jersey guidelines also take into consideration the number of “overnights” the child spends with each parent. This is significant in determining whether to use the “sole” or “shared” parenting guidelines worksheet when doing the actual calculation.

Joint Legal аnd Shared Physical Custody

Another раrt оf thе Νеw Jersey child support guidelines involves which parent has been designated as the parent of primary residence (PPR) and which parent has been designated as the parent of alternate residence (PAR). Generally, the net child support is paid by the parent of alternate residence to the parent of primary residence.

As far as shared physical custody is concerned, each parent has equal say in such important areas as medical treatment and education, for example. The day-to-day decisions as to what the children will eat or whom the children will play with are usually exercised by the parent of primary residence because he/she sees the children more frequently.

As far as legal custody is concerned, absent an extraordinary circumstance, such as criminal behavior or profound mental instability, both parents are deemed legal custodians of the children.

For many people, child custody determination is one of the more stressful aspects of divorce. Understanding how judges analyze child custody and parenting time in New Jersey can allay fears and prepare parents for often-emotional child custody proceedings. In addition, when a parent’s life dramatically changes after a child custody arrangement is finalized, knowing whether custody modification is possible also can be helpful.

When parents with minor children get divorced, they may create their own child custody arrangement and include it in a marital settlement agreement. If the parents are unable or unwilling to resolve the child custody issue, a judge will make a child custody determination that is in the best interest of the child.

CHILD CUSTODY FACTORS

When analyzing which custody arrangement would be in the best interest of the child, judges in New Jersey must consider the following factors listed in N.J.S.A. 9:2-4:

The parent’s ability to agree, communicate and cooperate regarding the child;

The parent’s willingness to accept custody and share custody with the other parent;

Any history of domestic violence;

The child’s and either parent’s safety from physical abuse by the other parent;

The child’s needs;

The age and number of the children;

The preference of the child if he or she is capable of forming an intelligent decision;

The quality and continuity of the child’s education;

The distance between the parents’ homes;

The stability of each parent’s home environment;

The amount and quality of time spent with the child before the divorce;

The parent’s employment responsibilities; and

The fitness of the parents to raise the child.

According to New Jersey statute, a person is not deemed unfit to parent unless his or her conduct has a substantial adverse impact upon the child. Also, there is no presumption that either parent is preferred for custody solely because of his or her gender.

The New Jersey Legislature has declared that the state’s public policy is to assure minor children frequent and continuing contact with both their parents, if appropriate considering the children’s best interest. After divorce, New Jersey laws also encourage both parents to share the rights and responsibilities of raising children. Therefore, the most common types of child custody in New Jersey is joint legal and shared physical custody.

TYPES OF CHILD CUSTODY

When joint custody is awarded, the child frequently alternates between the parents’ two residences. The child custody order will declare the physical custody and residential arrangements for the child and designate the Parent of Primary Residence (PPR) and the Parent of Alternate Residence (PAR). It also will contain provisions for communication between the parents on major life decisions for the child such as healthcare, religion and education.

Otherwise, if joint custody is not in the best interest of the child, a judge may award sole custody to one parent. Moreover, New Jersey law also allows judges to order any other custody arrangement that they determine is in the best interest of the child. Joint custody is most frequently ordered, however, and deviations from this norm are unusual.

CHILD CUSTODY MODIFICATION

Once a child custody arrangement is ordered, modification of its terms occurs only by agreement or a substantial change in circumstances.

Because the primary consideration in child custody determinations is the best interest of the child, a parent seeking to alter custody must establish a prima facie case for modification by showing that a substantial change in circumstances affects the welfare of the child such that his or her best interest would be better served by modifying the custody arrangement.

If the petitioner is able to establish a prima facie case for modification, a judge then must consider whether information gathering through discovery is necessary. If so, the judge will order discovery and define its scope. Oftentimes, the judge will hold a plenary hearing at which each parent presents his or her testimony, arguments and evidence. The children may be interviewed by the judge depending upon their ages.

A substantial change in circumstances is a difficult standard to meet. Job loss is not a probative factor unless the parent’s situation is so desperate that he or she is unable to care for the child; however, evidence of substance abuse or physical abuse by a parent is generally sufficient to warrant a change in child custody. Judges also consider the age of the child and his or her preferences, if old enough, as well as the child’s schooling and the lifestyle of the parent.

If you are considering divorce, are wondering what might happen with your children after divorce or would like to modify an existing child support order,contact a family law attorney with experience in child custody cases to discuss your legal rights and options.